Brexit: What should EEA and EU nationals and their family members do now?

On 24 June 2016 the right to live in the
United Kingdom for over 3 million people of its people was suddenly cast into
doubt. If generous provision is not made for them we are looking at the biggest
mass expulsion of population since 1290, when Edward I infamously ordered the
Jews of England into exile.

I say this because there are estimated to
be over 3 million citizens of other EEA countries living in the UK. The total
number may be higher if their family members (spouses, parents, others) from
outside the EU is taken into account. The total population of the UK is around
65 million, meaning these EEA citizens are around 5% of the total population.

Despite the fact that the referendum might
profoundly affect their future, they were not allowed to vote. Like phantoms
they were able to see and hear but were unheard and unheeded. They had to
look on helplessly as the British people, media and politicians talked about them
and never to them, misrepresenting their motives and their contribution to this
country.

Nothing happens for at least 2 years

The first point to make here is that the
referendum on 23 June 2016 has no immediate legal effect and does not change
anybody’s legal status. The UK is still a Member State of the European Union
and free movement laws continue to apply at the moment. Citizens of other EU
countries and their family members living in the UK are still living here
lawfully and can freely leave and re-enter the country.

For the UK to leave the European Union, the
British Government will need to invoke or trigger Article 50 of the Treaty on
European Union. This is the legal means by which a Member State may voluntarily
leave the European Union. It states that unless the departing country and the
rest of the EU can agree something different, the departing country will cease
to be a member 2 years after Article 50 is invoked.

Absence of assurance

As previously discussed on the
blog, outgoing Prime Minister David Cameron and other Government spokesmen have
refused to give assurances on what will happen to EU nationals currently living
in the UK. The latest the Government is able to offer is this:

When we do leave the EU, we fully expect
that the legal status of EU nationals living in the UK, and that of UK
nationals in EU member states, will be properly protected.

It seems that the current Government is
unwilling to commit the next Government and is wary of losing a potential
bargaining chip in the coming negotiations. The rights of EU nationals in the
UK have been repeatedly linked to the rights of British citizens living in
other EU countries. A motion was tabled in the House of Commons urging the
Government to make arrangements, but only 273 MPS voted on it out of 650 and
the motion does not bind the Government.

Who is most at risk?

Despite the unforgivable reticence of the
Government to make any commitment on the future of EU nationals, it still seems
highly likely that generous transitional arrangements will be made if the UK
does not join the EEA.

Those most likely to benefit are:

1. EU nationals and family members who have already acquired permanent
residence and

2. EU nationals who have an EU right of residence but have not
yet acquired permanent residence and their family members.

Get residence documents

I am reluctant to advise people to do
something I do not know for sure they need to do. However, applying for
residence documents is cheap at only £65 for an application and it offers
clarity about a person’s current status.

I would recommend that EU nationals and
family members apply for residence certificates or cards as soon as possible.
It is perfectly feasible to do this without a lawyer. You do not need to use
the Home Office forms but may find it convenient to do so. You can find the
forms here. I’ve written an ebook on making EU
residence applications which may prove helpful if you are unsure.

Get permanent residence documents

I would advise anyone who thinks they qualify
for permanent residence to make an application for a permanent residence
certificate or card. This is partly to get ready for any transitional
arrangements but is also to give people who do not qualify now a
chance to make sure they do qualify

To put it another way, it will be at least
two years before EU free movement law ceases to apply and that may be enough
time for some people to ensure they do qualify for permanent residence, or at
least are on the road to doing so.

Naturalisation as a British citizen

Some EU citizens or family members may wish
to naturalise as British citizens. However, it is important to be careful about
this because the UK Government now says that the family members of dual
citizens cannot benefit from EU free movement law. This means that any family
members from outside the EEA would lose their right of residence in the UK if
their EEA family member naturalises as British.

Prior to 2012 the Government had no problem
with dual citizenship but in response to a case called McCarthy the
Home Office changed its approach. It is arguable that the current UK approach
is unlawful in EU law but, I say again, this is no time to be standing on
principle.

Waiting times

The waiting times for EU residence
documents are thought to be long at the moment, but nobody is sure how long
(see this earlier post: Waiting times for EEA residence applications.)

The Home Office is obliged in EU law to
issue such documents within 6 months of application but has been known to
breach this provision.

With so many people now likely to be making
applications and with the Home Office insisting on such voluminous collections
of documents to be submitted and being notoriously inefficient and badly run it
seems likely that waiting times will grow.

For assistance in getting your Residence Documents or
Naturalization as a British Citizen get in touch with us via anjum@vira.co.uk.